It’s a question that catches many people off guard: Can your spouse actually leave you nothing in their will? Whether you’re in a long-term marriage, a second marriage, or an estranged relationship, it’s natural to wonder what your rights are.
In North Carolina, the short answer is no—not entirely. Even if a spouse tries to leave you out of their will, the law provides protections to prevent complete disinheritance. These protections are part of what’s known as the elective share law.
Understanding your rights as a surviving spouse is important, especially during a time of grief or transition. Working with an experienced estate planning attorney can help you navigate these laws and make informed decisions.
What If There’s No Will?
If someone dies without a will in North Carolina, state law determines how their assets are divided. In that case, the surviving spouse is still entitled to a portion of the estate, but the exact amount depends on factors like whether the deceased had children or living parents. This process can be time-consuming, confusing, and may not reflect what the deceased would have wanted.
Having a legally valid will in place helps avoid uncertainty, reduces stress for your loved ones, and gives you control over who receives your assets—and how. It also makes it easier for a surviving spouse to understand and protect their rights.
What Is the Elective Share Law in North Carolina?
The elective share is a law in North Carolina that gives surviving spouses the right to claim a portion of their deceased spouse’s estate—even if they were left out of the will. This rule exists to make sure that one spouse cannot completely cut the other out of their estate without consent.
How Is the Elective Share Calculated in NC?
The amount a surviving spouse can claim depends on how long the couple was married:
- Less than 5 years: 15% of the total net assets
- 5 to 10 years: 25%
- 10 to 15 years: 33%
- 15 or more years: 50%
This share is calculated from the total net assets of the deceased spouse—not just the assets that go through probate. That means things like jointly owned property, life insurance, and certain trust assets may also be considered when calculating what the surviving spouse is entitled to.
In short, even if a will says otherwise, the law makes sure that a spouse gets their fair share—unless they’ve legally given up that right.
Exceptions to Elective Share and Important Considerations
While the elective share law provides strong protections, there are some important exceptions and things to keep in mind:
Prenuptial and Postnuptial Agreements
If a couple signed a prenuptial or postnuptial agreement where one spouse waived their right to an elective share, then that agreement usually stands—so long as it was legally valid and signed voluntarily. These agreements are often used in second marriages or when one spouse enters the relationship with significant assets.
Disinheriting a Spouse Legally
It is possible to legally disinherit a spouse. This usually involves a combination of legal separation and a valid agreement that waives inheritance rights. But unless this has been properly documented, a surviving spouse will still be able to claim their elective share.
How Trusts and Asset Transfers Affect the Share
Some estate plans may use revocable or irrevocable trusts to shift assets out of a spouse’s estate. While this might reduce what’s available for the elective share, North Carolina law takes steps to include many of these assets in the total net asset calculation. This helps ensure that a spouse can’t simply move everything out of reach through legal loopholes.
How to Claim an Elective Share in North Carolina
To claim your elective share, you must file a formal petition with the Mecklenburg County clerk of superior court, or in whichever county where the estate is being administered. You’ll pay a $200 fee for filing the petition. The process involves providing documentation of the deceased spouse’s assets and financial accounts, and it may require court hearings if there’s a disagreement.
Act Quickly to Claim Your Elective Share in North Carolina
If you are a surviving spouse considering an elective share claim, you must act quickly. North Carolina law gives you only six months from the date the estate’s personal representative is officially appointed to file a claim.
If you miss this window, you could lose your right entirely. That’s why it’s important to speak with an attorney as soon as possible if you believe you’ve been left out of a will or treated unfairly.
How an Estate Planning Lawyer Can Help
Dealing with the loss of a spouse is hard enough—navigating the legal system on top of that can feel overwhelming. That’s where an experienced estate planning attorney comes in. A lawyer can help you understand your rights and make sure you don’t miss important deadlines. If you need to file a claim, they’ll handle the paperwork, gather financial records, and advocate for your fair share.
For couples planning their estates, an attorney can help ensure that wills and trusts are fair, legal, and clear—reducing the risk of confusion or future disputes. In more complicated situations—like blended families, estranged spouses, or hidden assets, an attorney can protect your interests and help ensure your family’s future is secure.
Contact a Charlotte Estate Planning Lawyer Today
Whether you’re planning your estate or concerned about being left out of your spouse’s will, having the right legal support is key. An estate planning attorney can help you understand your options, protect your assets, and make sure your plan holds up—both legally and emotionally.
If you have questions about your rights as a spouse—or want to make sure your own estate plan is fair and legally sound—contact our North Carolina estate planning office today or call 704-766-8836 to schedule a consultation.
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